{UAH} FORCEFUL RESIGNATION- A Forgotten Flaw

This to my view falls within the precincts of termination of employment; improper as it may be. Principally, where a contract is governed by written agreement between the employer and employee, termination of employment services to be rendered will depend both on the terms of the agreement and on the law applicable[1].  It is a practice of law, that prior to the termination of one’s employment, a reasonable notice be issued to the employer and as such the employer will therefore not be liable to compensate the employee. However, termination without notice is compensated by payment in lieu of notice and in some cases an award of damages where no such payment is made may be made by the courts. In my view, termination by way of ‘forceful resignation’ falls within the confines of termination without notice’ and as such the employee will be entitle to be compensated. Resignation is a formal notification of relinquishing of one’s office or position[2].

 Forceful on the other hand means ‘exerting or impelled[3] by force[4]’. As such Forceful resignations insinuates to an impelled formal notification of one’s relinquishment of office or position. This is no justifiable means of lawful termination of employment.

The position of the law is that an employer may terminate the employee's employment for a reason or for no reason at all. However, the employer must do so according to the terms of the contract otherwise he would suffer the consequences arising from failure to follow the right procedure of termination. A termination is effective even when wrongful because courts cannot force an employer to keep an employee forever[5]. However, when the employee is wrongfully terminated, then the employer would have to contend with a claim for damages and compensation for wrongful dismissal.

Thus it was stated by Kanyeihainba JSC (as he then was) "In my opinion, where any contract of employment, … stipulates that a party may terminate it by giving notice of a specified period, such contract can be terminated by giving the stipulated notice for the period. In default of such notice by the employer, the employee is entitled to receive payment in lieu of notice and where no period for notice is stipulated, compensation will be awarded for reasonable notice which should have been given, depending on the nature and duration of employment. It must be rightly appreciated that an employee is entitled to full compensation only in those cases where the period of service is fixed without provision for giving notice[6]."

It is my considered view that the afore mentioned claims notwithstanding, there is freedom of contract and courts cannot enforce specific performance of a normal contract of service. The position of the law on unlawful and unfair dismissal whether by way of forceful resignation or otherwise is to the effect that:

"It is trite that, a court of law should not use its powers to force an employer to retake an employee it no longer wishes to continue to engage. However, depending on the circumstances, an employee who is unfairly or unlawfully dismissed, as in this case, should be compensated adequately in accordance with the law[7]”. 

As a matter of constitutional fact, the employee expects to be protected from unfair and unwarranted breaches of the contract of employment by the employer. When an employee is wrongfully terminated, the court should use its powers[8] to award adequate compensation. That be as it may, it is trite that where a contract of the employment has been terminated, the employee has no right to claim payment under the contract[9]; his relationship with the employer is deemed extinguished as such the employer is under no obligation to pay him any dues.

It’s worth however noting the extent to which the compensation may take. The contention that an employee, whose contract of employment is terminated prematurely or illegally, should be compensated for the remainder of the years or period when they would have retired is unattainable in law. Similarly, claims of holidays, leave, lunch allowances and the like which the unlawfully dismissed employee would have enjoyed had the dismissal not occurred are merely speculative and cannot be justified in law[10].

I only wish to add further, by way of emphasis a few thoughts about wrongful termination of contract. The question that needs to be answered is this: what are the consequences of any wrongful / illegal termination? As already stated, it is trite law that normally an employer cannot be forced to keep an employee against his will. There can be no order for specific performance in contracts of employment. However the employer must be prepared to pay damages for wrongful dismissal, pay for any period of notice stipulated in the agreement, and pay any other benefits, like pension dues, that have accrued at the time of the termination[11].

In fact, an employee who has been wrongfully dismissed will normally have no option but to accept the employer's repudiation and sue for damages for breach of contract[12].

 Once a contract of employment is terminated, albeit wrongfully, the (supposed) employee can no longer be treated as an employee of the employer. As indicated above he is entitled to his payment in lieu of notice, his accrued pension, and damages for wrongful dismissal. In that regard he can only be awarded what was in his contract of employment. It has long been well settled in law that if a man employed under a· contract of personal service is wrongfully dismissed; he has no claim for remuneration due under the contract after repudiation. His only money claim is for damages for having been prevented from earning his remuneration. His sole money claim is for damages and he must do everything he reasonably can to mitigate them[13].
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[1] Barclays Bank of Uganda Vs Godfrey Mubiru SCCA No. 1/1998,
[2] Black’s Law Dictionary
[3] Impel means to urge or drive by force, or to constrain
[4] Merriam Webster Unabridged dictionary
[5] Stanbic Bank ltd vs. Kiyimba Mutale SCCA No. 02 of 2010
 
[6] Barclays. Bank of Uganda Vs Godfrey Mubiru in Civil Appeal No 1 of 1998
[7] Bank of Uganda Vs Betty Tinkamanyire SCCA No 12 of 2007.
[8] under article 126 (2) (c) of the Constitution of the republic of Uganda
[9] Rugudu Vs International Law Institute [2007J 2 E.A 444.
 
[10] Bank of Uganda Vs Betty Tinkamanyire,(Supra)
[11] This is well laid down by this court in the case of Barclays bank of Uganda -vs.- Godfrey Mubiru SCCA No. 1/1998 and Bank of Uganda -vs- Tinkamanyire - SCCA NO. 12 of 2007.
 
[12] Halsbury's Laws of England vol.16 Para 305
[13]Vine -vs.- National Dock Labour Board [1956] 1 QB 658, cited with approval by this court in Doreen Rugundu -vs.- International Law Institute, Supreme Court Civil Appeal No.8 of 2005, Jenkins L.J

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H.OGWAPITI
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